Sick or injured employees and the inherent requirements of the job

A recent decision of the Federal Circuit Court provides a timely reminder of the dangers associated with making decisions about the ability of employees with an illness or injury to perform the inherent requirements of the job.

In Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827, an employer was found to have acted in contravention of the Disability Discrimination Act, the provisions of the relevant employment agreement, as well as the employer's own policies.

The controversy arose as a result of the employer's decision to end the employee's secondment to an intelligence analyst role. That decision was found to have been made as a result of the employer having incorrectly interpreted advice that had been provided by the employee's medical practitioner.

Following the receipt (and misinterpretation) of the medical advice, the employer formed the view that the employee could no longer fulfil the inherent requirements of her role and forced the employee to take leave. Following the employee's accrued leave entitlements being exhausted, the employer – without consulting the employee – determined that the employee should be placed on leave without pay. That decision triggered a chain of events that ultimately led to the employee becoming a bankrupt.

The Court found that, not only had the employer applied an incorrect interpretation to the medical advice that had been provided, it also failed to properly consider what the inherent requirements of the intelligence analyst role were and whether, through some reasonable adjustments, the employee could continue to perform the role.

The Court awarded the employee total damages of $173,863.00 plus interest in respect of the loss of wages, leave and superannuation entitlements suffered, the medical costs that were incurred and the pain and suffering experienced.

The outcome in this matter highlights not only the importance of gaining an appropriate understanding of the ability of a sick or injured employee to continue to perform their role, but also the importance of giving careful consideration to the practical measures that can be put in place in order to assist the employee in the future performance of that role.

It is essential that these issues are given careful consideration - and appropriate legal advice is sought - before a final decision about the ongoing employment of a sick or injured employee is made. The consequences of getting it wrong can be significant.